Posts Tagged ‘suspect classification’

Two federal district judges have issued new rulings in lawsuits challenging the Trump Administration’s ban on military service by transgender individuals, mainly adverse to the government. [Addendum: After this was drafted, we received a decision from a federal magistrate judge in Baltimore on discovery issues in one of the other challenged to the transgender ban. Our summary appears at the end of this posting.]

After the San Francisco-based U.S. Court of Appeals for the 9th Circuit refused to lift Seattle U.S. District Judge Marsha Pechman’s preliminary injunction against the policy on July 18, she issued a new ruling on July 27 granting the plaintiffs’ motion to compel discovery and denying the government’s motion for a protective order that would shield President Trump from having to respond to any discovery requests. The Justice Department immediately announced that it would appeal this ruling to the 9th Circuit Court of Appeals. Judge Pechman had previously denied motions for summary judgment in the case, having found that there was a need for discovery before such a ruling could take place.

On August 6, D.C. District Court Judge Colleen Kollar-Kotelly, who had issued the first preliminary injunction against the policy last year, issued two decisions. In one, she rejected the government’s request to vacate her preliminary injunction as moot, finding that the plaintiffs have standing to challenge the “new” policy described by Defense Secretary James Mattis in his February 2018 memo to the President, and agreeing with Judge Pechman that the “new” policy is not essentially different from the “old” one announced by President Trump a year ago. However, Judge Kollar-Kotelly granted a motion by the government to dismiss President Trump as an individual named defendant in the case.

Two other lawsuits challenging the policy are pending in federal district courts in Riverside, California, and Baltimore, Maryland. In both cases, the judges have received motions from the parties that are awaiting decision, similar to those filed with Judges Pechman and Kollar-Kotelly.

To recap for those coming late to this story, Trump tweeted a ban on transgender military service on July 26, 2017, and issued a memorandum a month later describing the policy in slightly more detail, charging Secretary Mattis to propose a plan for implementation by late February, 2018, with the goal of implementing the policy later in March. Trump’s memo specified that Mattis’s previous directive to allow transgender applicants to join the military, which had been announced at the end of June 2017 to go into effect on January 1, 2018, was to be indefinitely delayed, as Trump’s policy would not allow transgender people to enlist. Mattis announced that no action would be taken against now-serving transgender personnel pending the implementation of the policy in March 2018, but there were reports of transgender personnel suffering cancellations of promotions and desire assignments and of planned medical procedures after the policy was announced.

Mattis’s memo to the president in February proposed some modifications to the policy that had been announced in Trump’s August memorandum. Transgender personnel who were already serving and had transitioned and were “stable” in their preferred gender would be allowed to continue serving, based on a determination that the investment in their training outweighed whatever “risk” they posed to the readiness of the military. Furthermore, transgender individuals who had not transitioned or been diagnosed with “gender dysphoria” would be allowed to enlist and serve, provided they refrained from transitioning and served in the sex identified at birth. Otherwise, those diagnosed with “gender dysphoria” would be prohibited from enlisting or serving, and those who could not comply with these requirements would be discharged. The proposal was based on a “finding” by a rigged special committee apparently dominated by committed opponents of transgendered service that allowing transgender people to serve in the military was harmful to the operational efficiency of the service – a finding based on no factual evidence and oblivious to the fact that transgender people had been serving openly without any problems since the Obama Administration lifted the prior ban at the end of June 2016.

Four lawsuits had been filed in response to the summer 2017 policy announcement, and in a matter of months the four district courts had issued preliminary injunctions, having found it likely that the plaintiffs would prevail on their argument that the policy violates the Equal Protection requirements of the 5th Amendment of the Bill of Rights. As compelled by the preliminary injunctions, the Defense Department allowed transgender people to submit applications to enlist beginning January 1, 2018, after losing a last-ditch court battle to continue the enlistment ban, but there were reports that the applications they received were getting very slow processing, and all indications are that few have been accepted for service.

Trump responded to Mattis’s February 2018 memo by “withdrawing” his prior memo and tweet, and authorizing Mattis to adopt the implementation plan he was recommending by late March. The Justice Department then filed motions in all the lawsuits seeking to lift the preliminary injunctions. Their argument was, in part, that the “new” policy was sufficiently different from the one that had been “withdrawn” as to moot the lawsuits. They further contended that the plaintiffs who were already serving and would be allowed to continue serving under the “new” policy no longer had standing to challenge the policy in court. The Department also argued that plaintiff’s attempts to conduct discovery in the case should be put on hold until there was a definitive appellate ruling on their motion to lift the preliminary injunctions.

On April 13, Judge Pechman rejected the government’s motion to lift the preliminary injunction, having already ordered that discovery proceed. In his initial tweet, Trump had claimed that he had consulted with generals and other experts before adopting the policy, but the identities of these people were not revealed, and the government has stonewalled against any attempt to discover their identities or any internal executive branch documents that might have been generated on this issue, making generalized claims of executive privilege. Similarly, the February memorandum released under Mattis’s name did not identify any of the individuals responsible for its composition, and naturally the plaintiffs are also seeking to discover who was involved in putting it together and what information they purported to rely upon.

Judge Pechman’s July 27 order to compel discovery specified the materials sought by the plaintiffs, and pointed out that under federal evidentiary rules, any claim of privilege against disclosure is subject to evaluation by the court. “The deliberative privilege is not absolute,” she wrote. “Several courts have recognized that the privilege does not apply in cases involving claims of governmental misconduct or where the government’s intent is at issue.”

The question, under 9th Circuit precedents, is “whether plaintiffs’ need for the materials and the need for accurate fact-finding override the government’s interest in non-disclosure. In making this determination, relevant factors include: (1) the relevance of the evidence; (2) the availability of other evidence; (3) the government’s role in the litigation; and (4) the extent to which disclosure would hinder frank and independent discussion regarding contemplated policies and decisions.” There is a formal process for invoking privilege, which requires the government to “provide precise and certain reasons for preserving the confidentiality of designated material.”

In this case, Judge Pechman had previously determined that discrimination because of gender identity involves a “suspect classification” for purposes of equal protection requirements, which means the government has the burden of proving that there is a compelling justification for the discrimination. In this case, however, the government has articulated only a generalized judgment that service by transgender individuals is too “risky” based on no facts whatsoever. Judge Pechman concluded in granting the plaintiffs’ discovery motion that “the deliberative process privilege does not apply in this case.”

The government had moved for a protective order “precluding discovery directed at President Trump.” While conceding that Trump has “not provided substantive responses or produced a privilege log” listing specifically what information has to be protected against disclosure, the government contended that “because the requested discovery raises ‘separation of powers concerns,’ Plaintiffs must exhaust discovery ‘from sources other than the President and his immediate White House advisors and staff’ before he is required to formally invoke the privilege.”

Judge Pechman noted that so far the government has refused to provide any information about how the policy decision was made or developed, and has failed to identify the specific documents and other information for which it claims privilege. In a footnote, she commented, “The Court notes that Defendants have steadfastly refused to identify even one general or military official President Trump consulted before announcing the ban.” Thus, she found, there was no basis for the court to evaluate “whether the privilege applies and if so, whether Plaintiffs have established a showing of need sufficient to overcome it.” Indeed, she concluded in a prior decision, as far as the record stands, it looks as if Trump made the whole thing up himself without relying on any military expertise. Thus, she has preliminarily rejected the government’s contention that the policy would enjoy the deference normally extended to military policies adopted based on the specialized training and expertise of the military policy makers.

Judge Kollar-Kotelly’s August 6 ruling focused on an issue that Judge Pechman had previously decided: whether the plaintiffs had standing to continue challenging the policy after Mattis’s memo supplanted the “withdrawn” earlier policy announcements. She had little trouble in determining that all the plaintiffs, even those who are currently-serving transgender personnel who would be allowed to consider serving under the “new” policy, still had standing, which requires a finding that implementing the policy would cause them harm.

“The Court rejects Defendants’ argument that Plaintiffs no longer have standing because they are not harmed by the Mattis Implementation Plan,” she wrote, stating that “the effect of that plan would be that individuals who require or have undergone gender transition would be absolutely disqualified from military service, individuals with a history or diagnosis of gender dysphoria would be largely disqualified from military service, and, to the extent that there are any individuals who identify as ‘transgender’ but do not fall under the first two categories, they would be allowed to serve, but only ‘in their biological sex’ (which means that openly transgender persons would generally not be allowed to serve in conformance with their identity.)” Furthermore, those who have already transitioned and are now serving would be doing so under the stigma of having been labeled as “unfit” for military service and presenting an undue risk to military readiness, and would likely suffer prejudice in terms of their assignments and their treatment by fellow military personnel, as well as emotional harm.

“The Mattis Implementation Plan sends a blatantly stigmatizing message to all members of the military hierarchy that has a unique and damaging effect on a narrow and identifiable set of individuals, of which Plaintiffs are members,” she wrote. They would be serving “pursuant to an exception to a policy that explicitly marks them as unfit for service. No other service members are so afflicted. These Plaintiffs are denied equal treatment because they will be the only service members who are allowed to serve only based on a technicality; as an exception to a policy that generally paints them as unfit.”

She concluded that “because their stigmatic injury derives from this unequal treatment, it is sufficient to confer standing.” She pointed out that beyond stigmatization, the Implementation Plan “creates a substantial risk that Plaintiffs will suffer concrete harms to their careers in the near future. There is a substantial risk that the plan will harm Plaintiffs’ career development in the form of reduced opportunities for assignments, promotion, training, and deployment. These harms are an additional basis for Plaintiffs’ standing.” She rejected the government’s contention that these harms were only “speculative.”

Furthermore, she rejected the claim that Trump’s “withdrawal” of his August 2017 memorandum and the substitution of the Mattis Implementation Plan made the existing lawsuits moot, agreeing with Judge Pechman that the “new” plan was merely a method of “implementing” the previously announced policy. She found that the Implementation Plan “prevents service by transgender individuals,” just as Trump had directed in August 2017, and the minor deviations from the complete categorical ban were not significant enough to make it substantially different.

Thus she refused to dissolve the preliminary injunction. She refrained from ruling on motions for summary judgment on the merits of the equal protection claim, because there are sharply contested facts in this case and no discovery has taken place, so it can’t be decided purely as a matter of law. The facts count here in court, even if they don’t seem to count in the White House or the Defense Department.

However, Judge Kollar-Kotelly granted the government’s motion to partially dissolve the injunction as it applies personally to Trump, and granted the motion to “dismiss the President himself as a party to this case. Throughout this lawsuit,” she wrote, “Plaintiffs ask this Court to enjoin a policy that represents an official, non-ministerial act of the President, and declare that policy unlawful. Sound separation-of-power principles counsel the Court against granting these forms of relief against the President directly.” Thus, she concluded, there was no reason to retain Trump as a defendant. If the Plaintiffs prevail on the merits, an injunction aimed at the Defense Department’s leadership preventing the policy from taking effect will provide complete relief.

The Plaintiffs complained that removing Trump from the case as a defendant would undermine their attempt to discover the information necessary to make their case, since individuals who are parties to litigation are particularly susceptible to discovery requests. The judge wrote that “it would not be appropriate to retain the President as a party to this case simply because it will be more complicated to seek discovery from him if he is dismissed. To the extent that there exists relevant and appropriate discovery related to the President, Plaintiffs will still be able to obtain that discovery despite the President not being a party to the case.” And, she concluded, “Plaintiffs will be able to enforce their legal rights and obtain all relief sought in this case without the President as a party.”

The judge treated as moot the Defendants’ motion for a protective order shielding Trump from having to respond to discovery requests. “However,” she wrote, “the Court reiterates that dismissing the President as a party to this case does not mean that Plaintiffs are prevented from pursuing discovery related to the President. The court understands that the parties dispute whether discovery related to the President which has been sought by Plaintiffs is precluded by the deliberative process or presidential communication privileges, and the Court makes no ruling on those disputes at this point. The Court will be issuing further opinions addressing other dispositive motions that have been filed in this case. After all of those opinions have been issued, if necessary, the Court will give the parties further guidance on the resolution of the discovery requests in this case.” In a footnote, Judge Kollar-Kotelly noted Judge Pechman’s July 27 discovery order, and that defendants were appealing it to the 9th Circuit. The judge emphasized that the preliminary injunction remains in effect for all of the remaining defendants in the case, so the policy may not be implemented while the case continues.

The possibility that Trump will be ordered to submit to questioning under oath in at least one of these cases remains a reality, but any attempt by the Plaintiffs to do so would undoubtedly arouse spirited opposition from the Defense Department, officially based on claims of privilege, but realistically due to the likelihood that Trump would perjure himself under such questioning. Recall the historical precedent: The House of Representatives voted to impeach President Clinton based, in part, on the charge that he committed perjury during questioning before a grand jury by the Special Counsel investigating his affair with Monica Lewinski. Thus, at least in that case, the House considered presidential perjury to be an impeachable offense.

On August 14, U.S. Magistrate Judge A. David Copperthite, to whom Baltimore U.S. District Judge Marvin J. Garbis had referred discovery matters in Stone v. Trump, another one of the pending cases, issued a ruling granting in part the plaintiffs’ motion to compel discovery of deliberative materials regarding Trump’s July 2017 tweet, August 2017 memorandum, the “activities of the DoD’s so-called panel of experts and its working groups” who put together the memorandum ultimately submitted by Mattis to the President in February 2018, and deliberative materials regarding that Implementation Plan and the President’s March memorandum, “including any participation or interference in that process by anti-transgender activists and lobbyists.” However, noting that a motion is pending before Judge Garbis to dismiss Trump as a defendant in the case, Judge Copperthite declined to rule on the government’s request for a protective order that would shield Trump from having to respond to discovery requests directed to him, “pending the resolution of the motion to dismiss President Trump as a party.” Cooperthite wrote that “no interrogatories or document requests will be directed to President Trump as a party, but may be directed to other parties pursuant to this Memorandum Opinion. If the Motion to Dismiss is denied, the Court will revisit the issue of the protective order as to President Trump.”

Cooperthite faced a practical dilemma in dealing with the government’s requests to shield Trump from discovery. “On July 27, 2017, President Trump tweeted transgender persons would no longer be able to serve in the military and as for any deliberative process, simply stated this policy occurred after consulting with ‘my Generals and military experts.’ There is no evidence to support the concept that ‘my Generals and military experts’ would have the information Plaintiffs request. There is no evidence provided to this Court that ‘my Generals and military experts’ are identified, in fact do exist, or that they would be included in document requests and interrogatories propounded to the Executive Branch, excluding the President. By tweeting his decisions to the world, the President has, in fact narrowed the focus of Plaintiffs’ inquiries to the President himself. The Presidential tweets put the President front and enter as the potential discriminating official.” So there is a real question whether discovery that doesn’t include President Trump is at all meaningful, since the ultimate legal question in the litigation is the intent of the government in adopting the ban which is, at bottom, Trump’s intent. On the other hand, discovery directed at President Trump raises serious questions about separation of powers and the traditional respect for the confidentiality of internal White House policy deliberations.

“So many factors are unknown at this juncture in the litigation,” wrote Copperthite. “It is unknown whether Plaintiffs can obtain the information necessary from the non-Presidential discovery to define the ‘intent’ of the government with respect to the transgender ban. Defendants offer as an alternative, a stay of discovery with respect to the President, until the Motion to Dismiss the President as a party is decided. If the President, as the discriminating official, tweeted his transgender ban sua sponte as alleged, this Court sees no alternative to obtaining the intent of the government other than denying the protective order with respect to President Trump.” However, he wrote, precedents “instruct this Court to give deference to the executive branch because ‘occasions for constitutional confrontation between the two branches should be avoided whenever possible.’” Thus, Copperthite decided to put off deciding the protective order issue until after Judge Garbis decides whether to dismiss Trump as a party, but for now will order the defendants only to comply with discovery requests directed to defendants other than Trump, Secretary Mattis and the Secretaries of the various military branches.

U.S. District Judge Marsha J. Pechman issued an Order on April 13 in Karnoski v. Trump, one of four pending legal challenges to the Trump Administration’s announced ban on military service by transgender people. Judge Pechman, who sits in the Western District of Washington (Seattle), rejected the Administration’s argument that existing preliminary injunctions issued by her and three other federal district judges last year against the transgender ban are moot because of President Donald J. Trump’s March 23 Memorandum, which purported to “revoke” his August 25, 2017, Memorandum and July 26, 2017, tweets announcing the ban. Karnoski v. Trump, 2018 WL 1784464 (W.D. Wash.).

Her skepticism as to this is clear from her description of events: “The 2018 Memorandum confirms [Trump’s] receipt of [Defense Secretary James Mattis’s] Implementation Plan, purports to ‘revoke’ the 2017 Memorandum and ‘any other directive [he] may have made with respect to military service by transgender individuals [an oblique reference to the July tweets],’ and directs the Secretaries of Defense and Homeland Security to ‘exercise their authority to implement any appropriate policies concerning military service by transgender individuals.’” Thus, the judge rejected the Administration’s contention that Mattis was directed by the President to have a new study made to decide whether to let transgender people serve, and saw it for what it was: an order to propose a plan to implement Trump’s announced ban.

Judge Pechman also rejected the government’s argument that the policy announced in the February 22 Memorandum signed by Secretary James Mattis either deprives all the plaintiffs in the case of “standing” to sue the government, or that the policy it announces is so different from the one previously announced by President Trump that the current lawsuit, specifically aimed at the previously announced policy, is effectively moot as well. The government argued that due to various tweaks and exceptions to the policy announced on March 23, none of the individual plaintiffs in this case were threatened with the kind of individualized harm necessary to have standing, but Pechman concluded that each of the plaintiffs, in facts submitted in response to the March 23 policy, had adequately shown that they still had a personal stake in the outcome of this case.

Instead, and most consequentially, Judge Pechman found that the court should employ the most demanding level of judicial review – strict scrutiny – because transgender people are a “suspect class” for constitutional purposes. However, Judge Pechman decided that it is premature to grant summary judgment to the plaintiffs, because disputed issues of material fact will require further hearings to resolve. One is whether the government can prove that excluding transgender people from the military is necessary for the national security of the United States. Another is whether the purported “study” that produced the February 22 “Report and Recommendations” and Mattis’s Memorandum are entitled to the kind of deference that courts ordinarily extend to military policies.

Judge Pechman’s boldest step is abandoning her prior ruling in this case that the challenged policies are subject only to heightened scrutiny, not strict scrutiny. Although the Supreme Court has not been consistent or precise in its approach to the level of judicial scrutiny for constitutional challenges to government actions, legal scholars and lower courts have generally described its rulings as divided into three general categories – strict scrutiny, heightened scrutiny, and rationality review.

If a case involves discrimination that uses a “suspect classification,” the approach is strict scrutiny. The policy is presumed unconstitutional and the government has a heavy burden of showing that it is necessary to achieve a compelling government interest, and is narrowly tailored to achieve that interest without unnecessarily burdening individual rights. The Supreme Court has identified race, national origin and religion as suspect classifications, and has not identified any new such classifications in a long time. Lower federal courts have generally refrained from identifying any new federal suspect classifications, but the California Supreme Court decided in 2008 that sexual orientation is a suspect classification under its state constitution when it struck down the ban on same-sex marriage.

Challenges to economic and social legislation that do not involve “suspect classifications” or “fundamental rights” are generally reviewed under the “rational basis” test. They are not presumed unconstitutional, and the burden is on the plaintiff to show that there was no rational, non-discriminatory reason to support the challenged law. Courts generally presume that legislatures have rational policy reasons for their actions, but evidence that a law was adopted solely due to animus against a particular group will result in it being declared unconstitutional.

During the last quarter of the 20th century, the Supreme Court began to identify some types of discrimination that fell somewhere between these existing categories, and the third “tier” of judicial review emerged, first in cases involving discrimination because of sex. The Supreme Court has used a variety of verbal formulations to describe this “heightened scrutiny” standard, but it places the burden on the government to show that such a law actually advances an important government interest.

So far, litigation about transgender rights in the federal courts has progressed to a heightened scrutiny standard in decisions from several circuit courts, including recent controversies about restroom access for transgender high school students, public employee discrimination cases, and lawsuits by transgender prisoners. Ruling on preliminary injunction motions in the transgender military cases last fall, Judge Pechman and the three other federal judges all referred to a heightened scrutiny standard. Now Judge Pechman blazes a new trail by ruling that discrimination against transgender people should be subject to the same strict scrutiny test used in race discrimination cases.

It is very difficult for the government to win a strict scrutiny case, but its best shot in this litigation depends on the court finding that the policy announced by Mattis is entitled to deference, and this turns on whether it is the product of “expert military judgment,” a phrase that appears in the Mattis Memorandum and the Report. Judge Pechman has already signaled in her Order her skepticism as to this. By characterizing this as an “Implementation Plan,” she implies that the question whether Trump actually consulted with generals and military experts back in July before tweeting his absolute ban remains in play, and she pointedly notes the continued refusal by the government to reveal who, if anyone, Trump consulted.

“Defendants to date have failed to identify even one General or military expert he consulted,” she wrote, “despite having been ordered to do so repeatedly. Indeed, the only evidence concerning the lead-up to his Twitter Announcement reveals that military officials were entirely unaware of the Ban, and that the abrupt change in policy was ‘unexpected.’” Here she quotes Joint Chiefs Chairman Gen. Joseph Dunford’s statement the day after the tweets that “yesterday’s announcement was unexpected,” and news reports that White House and Pentagon officials “were unable to explain the most basic of details about how it would be carried out.” She also notes that Mattis was given only one day’s notice before the announcement. “As no other persons have ever been identified by Defendants – despite repeated Court orders to do so – the Court is led to conclude that the Ban was devised by the President, and the President alone.”

Thus, it would be logical to conclude, as she had preliminarily concluded last year when she issued her injunction, that no military expertise was involved and so no deference should be extended to the policy. On the other hand, the new “Report and Recommendations” are now advanced by the government as filling the information gap and supporting deference. But Judge Pechman remains skeptical. (There are press reports, which she does not mention, that this document originated at the Heritage Foundation, a right-wing think tank, rather than from the Defense Department, and it has been subjected to withering criticism by, among others, the American Psychiatric Association.)

Citing their “study,” the government now claims “that the Ban – as set forth in the 2018 Memorandum and the Implementation Plan – is now the product of a deliberative review. In particular, Defendants claim the Ban has been subjected to ‘an exhaustive study’ and is consistent with the recommendations of a ‘Panel of Experts’ convened by Secretary Mattis to study ‘military service by transgender individuals, focusing on military readiness, lethality, and unit cohesion,’ and tasked with ‘conduct[ing] an independent multi-disciplinary review and study of relevant data and information pertaining to transgender Service members.’ Defendants claim that the Panel was comprised of senior military leaders who received ‘support from medical and personnel experts from across the [DoD] and [DHS],’ and considered ‘input from transgender Service members, commanders of transgender Service members, military medical professionals, and civilian medical professions with experience in the care and treatment of individuals with gender dysphoria.’ The Defendants also claim that the Report was ‘informed by the [DoD]’s own data obtained since the new policy began to take effect last year.’”

But, having “carefully considered the Implementation Plan,” wrote Pechman, “the Court concludes that whether the Ban is entitled to deference raises an unresolved question of fact. The Implementation Plan was not disclosed until March 23, 2018. As Defendants’ claims and evidence regarding their justifications for the Ban were presented to the Court only recently, Plaintiffs and [The State of Washington, which has intervened as a co-plaintiff] have not yet had an opportunity to test or respond to these claims. On the present record, the Court cannot determine whether the DoD’s deliberate process – including the timing and thoroughness of its study and the soundness of the medical and other evidence it relied upon – is of the type to which Courts typically should defer.”

In other words, Pechman suspects that this purported “study” is a political document, produced for litigation purposes, and she is undoubtedly aware that its accuracy has been sharply criticized. Furthermore, she wrote, “The Court notes that, even in the event it were to conclude that deference is owed, it would not be rendered powerless to address Plaintiffs’ and Washington’s constitutional claims, as Defendants seem to suggest.” And, she noted pointedly, the Defendants’ “claimed justifications for the Ban – to promote ‘military lethality and readiness’ and avoid ‘disrupt[ing] unit cohesion, or tax[ing] military resources’ – are strikingly similar to justifications offered in the past to support the military’s exclusion and segregation of African American service members, its ‘Don’t Ask, Don’t Tell’ policy, and its policy preventing women from serving in combat roles.” In short, Pechman will not be bamboozled by a replay of past discriminatory policies, all of which have been abandoned because they were based mainly on prejudice and stereotyping.

Thus, although the judge denied for now the Plaintiffs’ motions for summary judgment, it was because factual controversies must be resolved before the court can make a final ruling on the merits.

The Defendants won only one tiny victory in this ruling: a concession that the court lacks jurisdiction to impose injunctive relief against President Trump in his official capacity. However, even that was just a partial victory for Defendants, as Judge Pechman rejected the suggestion that the court lacks jurisdiction to issue a declaratory judgment against the President. “The Court is aware of no case holding that the President is immune from declaratory relief – rather, the Supreme Court has explicitly affirmed the entry of such relief,” citing several cases as examples. “The Court concludes that, not only does it have jurisdiction to issue declaratory relief against the President, but that this case presents a ‘most appropriate instance’ for such relief,” she continued, taking note of Trump’s original Twitter announcement, and that two of the operative Memoranda at issue in the case were signed by Trump. If, as Judge Pechman suspects, the Ban was devised in the first instance by Trump, and by Trump alone, a declaratory judgment that his action violated the Constitution would be entirely appropriate.

Plaintiffs are represented by a team of attorneys from Lambda Legal and OutServe-SLDN, with pro bono assistance from the law firms of Kirkland & Ellis LLP and Newman Du Wors LLP.

I glance at many court opinions almost every day in my ongoing quest of materials for my newsletter, Lesbian/Gay Law Notes, so I have a fairly good idea of what passes for constitutional analysis in federal district court opinions, but every now and then something just jumps out at me as reflecting sheer ignorance. One example of this is Fletcher v. Little, a November 20 decision by U.S. District Judge Sue L. Robinson (D. Delaware), who was appointed by George H.W. Bush in 1991. (2013 U.S. Dist. LEXIS 164831) The context is pro se prisoner litigation. Timothy Fletcher is a gay inmate in a Delaware prison who claims to have suffered harassment from fellow prisoners and unequal treatment from prison personnel, including failing to change his housing situation and punishing him for fighting with his cellmate when he claims he was fighting to defend himself against being raped. Judge Fletcher’s ruling granting the sole remaining defendant summary judgment on Fletcher’s Section 1983 equal protection claim may be correct, given her summary of the factual record. But her discussion of the equal protection analysis strikes me as woeful.

Here it is: “To state a claim under the Equal Protection Clause, plaintiff must allege that he is a member of a protected class and he was treated differently from similarly situated inmates. See City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (noting that the Equal Protection Clause ‘is essentially a direction that all persons similarly situated should be treated alike.’) If the litigant does not claim membership in a protected class, he must allege arbitrary and intentional discrimination in order to state an equal protection claim. See Village of Willowbrook v. Olech, 528 U.S. 562 (2000). Plaintiff must state facts showing that: ‘(1) the defendant treated him differently from others similarly situated, (2) the defendant did so intentionally, and (3) there was no rational basis for the difference in treatment.’ Hill v. Borough of Kutztown, 455 F.3d 225, 239 (3rd Cir. 2006). The Supreme Court has not recognized sexual orientation as a suspect class, and federal courts across the country have declined to identify homosexuals as a protected class. See Price-Cornelison v. Brooks, 524 F.3d 1103, 1113 n.9 (10th Cir. 2008) (collecting cases). Notably, plaintiff did not plead, and there is no evidence of record, that plaintiff was treated differently from similarly situated individuals and, even if he had, that there was no rational basis for any difference in treatment. Finally, no matter how offensive and derogatory the language that defendant allegedly used with respect to plaintiff’s sexual orientation, that alone does not give rise to a constitutional claim. See Aleem-X v. Westcott, 347 F. App’x 731 (3rd Cir. 2009) (unpublished) (verbal abuse of a prisoner, even of the lewd variety, is not actionable under 42 U.S.C. sec. 1983). Plaintiff fails to plead a facially plausible equal protection claim. Therefore, the court will dismiss the claim as frivolous pursuant to 28 U.S.C. sec. 1915(e)(2)(b)(ii) and Sec. 1915A(b)(1).”

In other words, Judge Robinson joins in the sloppy terminology and analysis in the equal protection context that speaks of “protected class,” a concept that is in fact alien to the equal protection theory, and says that “the Supreme Court has not recognized sexual orientation as a suspect class.” This is weird. How can a characteristic — sexual orientation — be a “class”? What the equal protection theory requires is that the government have some rational justification if it is treating groups of people defined by a particular characteristic unequally with people who do not share that characteristic. For example, “women” are not a “protected class,” and neither are “men.” But the equal protection clause has been construed by the Supreme Court to require a substantial legitimate justification when the government systematically treats women differently from men, because the Court regards discrimination on the basis of sex — i.e., the characteristic of a person’s sex — as grounds for suspecting that the treatment is attributable to stereotype or bias. We don’t have “suspect classes.” We have “suspect classifications.” The question is not whether “homosexuals” are a suspect class. It is whether sexual orientation is a suspect classification. That is, must the government have a legitimate justification for treating gay people differently from non-gay people in a particular situation? When a gay prison inmate expresses fear of being subjected to sexual assault by a cellmate, and a prison official treats that fear differently than they would treat the fear of a non-gay prison inmate of being sexually assaulted by their cellmate, then there is discrimination because of sexual orientation, and the government needs to explain why it takes the one complaint seriously and the other not.

Judge Robinson cites a 2008 decision by the 10th Circuit as her authority for the proposition that “federal courts across the country have declined to identify homosexuals as a protected class.” This reference is out-of-date and once again uses an improper term. It can be read to suggest that as of 2008, federal courts around the country generally agree that the equal protection clause provides no protection for gay people against discriminatory adverse treatment by government officials. This statement was certainly wrong as of 2008, and is most definitely wrong today. In 1996, the Supreme Court ruled in Romer v. Evans that a state policy adversely affecting gay people violates the 14th amendment if there is not some legitimate, non-discriminatory justification for it. This year, in U.S. v. Windsor, the court adopted the same approach in striking down Section 3 of the Defense of Marriage Act, finding that Congress’s decision to deny all federal recognition to same-sex marriages lawfully formed under state law was a deprivation of the “equal liberty” guaranteed by the 5th Amendment’s due process clause (which incorporates an equal protection requirement). So, whether it is a state or the federal government that is acting, the constitution protects gay people from unjustifiable government discrimination. For a more detailed analysis, one should consult the decisions by the 1st and 2nd Circuits in the DOMA cases that led up to the Supreme Court’s Windsor ruling. The 1st Circuit took an approach of using a more searching form of equal protection review for sexual orientation discrimination claims, following the approach suggested by Supreme Court Justice Sandra Day O’Connor in her concurring opinion in Lawrence v. Texas (2003). The 2nd Circuit, by contrast, in agreement with the Justice Department, found that “sexual orientation” discrimination calls for “heightened scrutiny,” the standard used to evaluate sex discrimination claims. In both circuits, the courts recognized that there is a sound historical basis for suspecting that when the government treats gay people adversely, it is acting out of bias or moral disapproval of homosexuality rather than from some legitimate, non-discriminatory policy justification. Judge Robinson’s application of the traditionally highly-deferential rational basis test is not consistent with these recent court of appeals decisions, much less the Supreme Court’s decision in U.S. v. Windsor.

It is clear that the 10th Circuit’s Price-Cornelison opinion from 2008 is not an accurate statement of the law any longer, if it ever was. I would argue that it failed to reflect accurately what the Supreme Court had done in Romer v. Evans, and so was already more than a decade out of date when it was written. Federal decisions subsequent to Romer in several circuits drive home the point, including the 9th Circuit’s rulings in the military context, and several decisions involving gay student harassment cases, including the 7th Circuit’s Nabozny decision issued shortly after Romer.

And federal district judges who have a “gay equal protection macro” in their office computers that inserts the standard paragraph based on outdated or incompetently stated case law should delete it. I suspect this may be what is going on. I doubt anybody doing competent research in current federal cases would produce the paragraph that appeared in Judge Robinson’s opinion, so I suspect it may be a recycling of outdated text, perhaps harvested from older circuit cases such as Price-Cornelison, thus perpetuating outdated statements about the law. If Judge Robinson’s paragraphs quoted above were newly composed by a law clerk assigned to this case, I would suggest that the judge assign her clerk to read the recent equal protection rulings that I’ve mentioned to avoid producing an inaccurate work product in the future.

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About the Author

Arthur S. Leonard, a professor at New York Law School since 1982, edits the monthly newsletter Lesbian/Gay Law Notes, and is co-author of Sexuality Law (Carolina Academic Press) and AIDS Law in a Nutshell (West Publishing Co.). He writes on legal issues for Gay City News (New York), and serves as a trustee of the Jewish Board of Family & Children's Services of New York.